Immigration Issues/COS from H-1B to H4 with old paystubs

QuestionHi Ajay,
My spouse was working on H1 till mid March, but now wants to convert to H4. She has paystubs till mid March.
1. Is it advisable to file for COS from H1 to H4 with the 30-40 days old paystubs?
2. Or should she go for H4 stamping at a Consulate in India?
3. If the COS is denied, will it have any affect on H4 stanping at the Consulate?
I have just joined a new employer after H1 transfer (after 30 days of loosing my previous job) and yet to get my first paystub. Should we wait till I get atleast 2 paystubs before we apply her COS? But that'll mean that her paystubs get about 60 days old.
Thanks

AnswerHi,

I recommend that change of status (COS) application be filed by your wife requesting H4 status. She will need to provide evidence that she was maintaining H1B status at time of filing H4 application, and that her spouse is currently maintaining H1B status since H4 status is dependent on the other spouse's maintenance of H1B status.

Her paystubs from the H1B employer are relatively recent, and thus there is a good probability that she will receive COS to H4. It may take 3 or 4 months for the decision from the USCIS. In any event, if she is not granted COS to H4, or if there has not been a decision and 180 days since termination of her employment are approaching, she should depart the U.S. and apply for H4 visa stamp. If she does not do so, she could be subject to the 3-year and 10-year bars to entry to the U.S.

If she wants to avoid uncertainty, she can go to a U.S. Consulate in her home country for H4 visa stamp as soon as possible.

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

OrganizationsAmerican Immigration Lawyers Association (AILA) full member since 1995.

Education/CredentialsAjay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.